Anonymized Summary of the Opinion

Factual and Procedural Background

This is an appeal against conviction from an appellate division of the High Court of Justiciary concerning whether a trial by jury was lawfully conducted in the absence of the accused. The Appellant was indicted at the Sheriff Court for two serious sexual offences said to have been committed in 2006/7 and 2015. He was remanded in custody from 4 August 2022 and, after a series of pre-trial diets and adjournments, was convicted in his absence following a jury trial held between 27 and 31 May 2024. The sentencing sheriff imposed an extended sentence in cumulo of six years, with a custodial term of four years backdated to 4 August 2022.

The procedural history shows repeated adjournments and a complicated pattern of appearances and non-appearances by the Appellant. The Appellant was present at only a few diets before the trial and, by February 2024, had dismissed his solicitors and indicated he would not instruct another solicitor or attend court. The court record contains a psychological report dated 27 July 2023 indicating personality disorder traits and substance-use disorders but no evidence of a mental illness. The Appellant remained remanded in custody throughout the lead-up to trial.

On the trial dates the Appellant refused to attend. Communications occurred among the Crown, Company A (the contracted transporter of detained persons to court), and the Sheriff Clerk indicating the Appellant's refusal and threatening behaviour. A warrant previously had been issued by another sheriff to secure attendance, but at trial the prosecutor withdrew that warrant and moved, and the trial sheriff granted, that the trial proceed in the Appellant's absence under section 92(2) of the Criminal Procedure (Scotland) Act 1995. The Appellant was convicted in his absence on 31 May 2024. The Appellant appealed, contending that the statutory conditions for proceeding under section 92(2) were not met and that, even if they were, the sheriff erred in assessing necessity.

Legal Issues Presented

1. Whether the sheriff competently allowed the trial to proceed in the Appellant's absence under section 92(2) of the Criminal Procedure (Scotland) Act 1995, given that the Appellant did not attend the trial at all.
2. If subsection 92(2) was not available, whether the breach of section 92(1) (which requires that no part of a trial take place outwith the presence of the accused) amounted to a miscarriage of justice.
3. Whether the Crown had fulfilled its obligation to take reasonable steps to secure the Appellant's attendance (including execution of a warrant) and whether any procedural irregularity could be excused under section 300A of the 1995 Act.

Arguments of the Parties

Appellant's Arguments

• The general rule under section 92(1) preserves the common-law requirement that a jury trial must take place in the physical presence of the accused; any exception in subsection (2) is narrow and requires misconduct occurring during the course of the trial.
• Section 92(2) authorises removal only where the accused has already been participating in the trial in a place where he can be removed; it does not authorise ordering a trial to proceed where the accused has never attended or where the motion is made before the substantive commencement of the trial (i.e. before evidence is led).
• The trial in this case was conducted entirely in the Appellant's absence and the sheriff's order under section 92(2) was therefore incompetent, constituting a breach of section 92(1) and a miscarriage of justice.
• The Crown had the responsibility to secure the Appellant's attendance; a warrant had been sought and could have been executed. By withdrawing the warrant the Crown surrendered its ability to enforce attendance and the trial should have been adjourned until the Appellant could be brought to court.

Crown's Arguments

• Section 92(2) should be interpreted purposively so as to give effect to its object of preventing trials being frustrated by disruptive conduct of an accused. That purposive construction supports allowing the trial to proceed where the accused has given clear indication that he will disrupt the trial and cannot realistically be brought to court in time.
• A more restrictive interpretation would permit a disruptive accused to avoid trial indefinitely by refusing to attend; the sheriff’s approach is consistent with authority and practice that aims to prevent such abuse.
• The Crown had taken steps to secure attendance; withdrawal of a warrant in the circumstances did not create unfairness because the Appellant had been given repeated opportunities and was represented by experienced counsel when represented. If an irregularity occurred it could be excused under section 300A of the 1995 Act as a procedural irregularity.
• If the court finds a miscarriage of justice, the Crown sought leave to consider prosecutorial options in accordance with sections 118(1)(c) and 119 of the 1995 Act.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a statutory and historical analysis of section 92 of the Criminal Procedure (Scotland) Act 1995. The reasoning proceeded along these principal lines, each derived from material in the opinion:

1. Statutory framework and common law backdrop: Section 92(1) restates the long-standing common-law rule requiring the presence of the accused for a jury trial. Subsection 92(2) is an exception that was first introduced in earlier statutory provisions and confers limited power to remove an accused and proceed in his absence where misconduct during the trial prevents a proper trial from occurring.
2. Identification of the prerequisites in subsection 92(2): The court identified three preconditions implicit in subsection 92(2):
   • misconduct occurring during the course of the trial;
   • the misconduct being such that, in the court's view, a proper trial cannot take place unless the accused is removed; and
   • practical ability to remove the accused (which implies that the accused is physically present in the trial venue or attending remotely so that removal is effective).
3. Application to the facts of this case: The Appellant never attended the trial hearing in person (and did not attend remotely). Because the misconduct relied upon consisted of a refusal to attend at all and threats made while detained, subsection 92(2) did not apply: the misconduct did not occur "during the course of his trial" in the sense required by the subsection and the Appellant was not in a place from which he could be removed.
4. Assessment of alternative measures and the Crown's conduct: The court noted that the Appellant had been remanded in custody and was therefore within state control; a warrant had been issued by another sheriff on a prior occasion and the trial sheriff could have adjourned to allow execution of a warrant or explored remote attendance options. The sheriff did, at an earlier stage, grant a warrant at trial before acquiescing in its withdrawal; the court criticised the decision to proceed rather than adjourn while the warrant was executed or remote attendance arranged, particularly because execution could have taken place within a short period (the sheriff was informed this could be done within two days).
5. On procedural irregularity and section 300A: The court analysed whether the trial conducted in absence was a procedural irregularity excusable under section 300A of the 1995 Act. The court concluded that the breach of the peremptory requirement in section 92(1) was not a mere procedural irregularity that could fairly be excused; the conduct amounted to a miscarriage of justice.
6. Balancing context and comparable authorities: The court acknowledged the sheriff's understandable frustration given delay and the interests of vulnerable witnesses, and noted comparative authorities and purposive arguments advanced by the Crown. However, the court emphasised that Scottish statutory and common-law requirements as currently drafted require presence except in the limited statutory exceptions, and that the facts did not engage those exceptions.
7. Postscript — remote ballot and commencement of trial: The court clarified that conducting a remote jury ballot in the absence of the accused (i.e., administrative preliminary steps) does not necessarily commence the substantive trial for the purposes of section 92(1). The court explained that such administrative steps, provided the accused is represented, can generally be undertaken without causing prejudice.

Holding and Implications

Holding: The appellate court concluded that the trial conducted entirely in the Appellant's absence breached section 92(1) of the Criminal Procedure (Scotland) Act 1995 and that proceeding under section 92(2) was not authorised on the facts presented. The court determined that this contravention amounted to a miscarriage of justice.

Implications:

• The court declared that the conduct of the trial in the Appellant's absence was not a mere procedural irregularity that could be excused under section 300A; it amounted to a miscarriage of justice.
• The court indicated that it would fix a hearing for the parties to address disposal under section 118 of the 1995 Act (i.e., to consider the appropriate steps following the conclusion that a miscarriage of justice occurred).
• No broader legislative change was made by the court; the opinion emphasises that, unless the legislature amends section 92, the statutory regime requiring presence remains in force and exceptions remain those expressly set out in subsections 92(2) and 92(2A). The court noted that comparative or purposive arguments do not displace the statutory limit in this case.
• The court's decision directly affects the parties by treating the proceedings as having resulted in a miscarriage of justice and by directing a further hearing on disposal. The opinion did not itself prescribe a final remedial order in the text provided but signalled further procedural steps under section 118.